Gathering Evidence

Establishing systems and processes to develop an evidence base and ensure it receives high-level attention.

When To Do This

Provisions requiring the collection of evidence, the monitoring and evaluation of U.S. assistance programs, the preparation and submission of reports, and the creation of review panels help to lay the foundations for policy change and identify potential solutions. Such provisions make sense when there is a lack of consensus about the nature, magnitude or significance of the problem or a lack of support for policy alternatives.

Requesting non-partisan research and analysis from respected institutions helps to provide data and evidence to inform decision-making and legislative action. It may also serve to depoliticize issues, identify areas of agreement, and legitimize courses of action.

How To Do This

Mandate the production of reports, direct government organizations to conduct research or investigations, require the collection or publication of data, or establish special panels and commissions to review information and make recommendations.

Members may request that audits, inspections, investigations, evaluations, monitoring, research, analysis, and reports be carried out by the Congressional Research Service, the Government Accountability Office, Inspectors General, the National Science Foundation, the Institute of Medicine, and other governmental institutions, as appropriate. Legislation can also establish special blue-ribbon panels, commissions, or ombudsmen to carry out these studies.

What You Should Know Before Proceeding

Many reports, such as those by the Congressional Research Service or the Government Accountability Office, can be initiated by simple request without the need for legislation.

The compilation of reports can be an enormous administrative burden. The Executive Branch regularly seeks to reduce the number of reporting requirements and/or to increase budgets to ensure adequate staffing to comply with reporting requirements.

Inspectors General must avoid political bias or the appearance thereof, and prefer to be guided by their own research agendas and investigative priorities rather than by legislative mandates.

Legislation cannot compel a report by an international organization or nongovernmental organization, or by White House organs such as the National Security Council, National Economic Council, or National Intelligence Council.

For financial, political and jurisdictional reasons, there can be strong congressional opposition to the creation of new panels and commissions, and there is often pressure to terminate the ones that already exist.

The degree of candor in an administration report is generally in reverse proportion to its statutory consequences. Reports are most honest when there are no legal ramifications for making a harsh assessment, such as triggering sanctions.

Publicly naming and shaming abusive regimes and ranking countries according to their performance can be quite effective, but it may also pose diplomatic tradeoffs for the administration.

The Department of Defense has adopted a policy for assessing, monitoring and evaluating its security cooperation programs. Unclassified summaries of the evaluations will be made available to the public. Security assistance programs carried out by the Department of State are subject to the State Department’s evaluation policy and published on its website.

Good Practices

Ask for only the types and amount of information that you will use. Broad reporting requirements, aside from being burdensome, often end up providing information that is not useful.

Avoid duplicative or unnecessary reporting by first researching reports that are already mandated or publicly available. Ask the executive branch or the Congressional Research Service to provide a list.

Recognize that reports have a cost, in terms of personnel time and effort. Offset new reporting requirements by eliminating lower-priority reports or providing additional funding.

When possible, permit reports to be researched and submitted in conjunction with existing processes and reporting cycles.

During the drafting process, give the reporting agency a chance to provide feedback on how the requirement would be interpreted, what the report would include, and how much time it would take to produce it.

Describe the report in neutral and unbiased terms, so that its findings are not predetermined by the nature of the question.

Be sensitive to information that could violate privacy, endanger the physical security of human rights defenders, or undermine pro-democracy efforts.

Consider putting sunset clauses on reports and commissions.

It is often more efficient to ask for a report to be produced only if something has occurred or failed to occur, rather than to require routine monitoring data.

Hold hearings, or at least briefings, on all congressionally-mandated reports. After all the work that goes into preparing these reports, it is important for the administration to know that someone is reading them.

Precedents

The Big One. The State Department’s annual Country Reports on Human Rights Practices, required by Secs. 116 and 502B of the Foreign Assistance Act of 1961 (PL 87-195), have evolved over time. In their early years, the reports were considered something of a whitewash, which is why from 1978-1996 the Lawyers Committee for Human Rights produced an annual book-length critique of the State Department reports. Revisions to the State Department’s reporting instructions in 1993 resulted in greater accuracy, objectivity and comprehensiveness, and made the reports more useful to and more respected by the human rights community. The on-line reports now allow for customized search and comparison between countries or across specific human rights issues.

International Religious Freedom Report. The International Religious Freedom Act of 1998 (PL 105-292) requires an annual report from the State Department describing violations of religious beliefs and practices in every country, as well as U.S. efforts to promote religious freedom. Like the Country Reports on Human Rights Practices, the International Religious Freedom Report is customizable.

Using Reports to Make a Point. Moynihan added a provision (Sec. 614) to the Foreign Relations Authorization Act for FY 2003 (PL 107-228), requiring that the State Department’s annual reports on human rights practices and on international religious freedom contain a separate section for Tibet.

Highly Impactful Report. The State Department describes the annual Trafficking in Persons (TIP) Report (required under Sec. 110(b) of the Trafficking Victims Protection Act of 2000 (PL 106-386) as “the U.S. Government’s principal diplomatic tool to engage foreign governments on human trafficking. It is also the world’s most comprehensive resource of governmental anti-human trafficking efforts and reflects the U.S. Government’s commitment to global leadership on this key human rights and law enforcement issue.” However, because it is such a powerful tool, there is often pressure to water it down. Concerned about its portrayalin this report, the Royal Thai Government has begun issuing its own assessment of its efforts to combat human trafficking.

Tying TIP Report to Trade Benefits.In May 2015, Sen. Robert Menendez added a provision to Trade Promotion Authority legislation (R. 1314, 114th) which barred Tier 3 countries (those with the worst records on human trafficking) from participating in fast-tracked trade deals. A month after the Senate vote, the State Department upgraded Malaysia’s ranking in the TIP report to permit completion of the Trans-Pacific Partnership deal. Under intense criticism, Secretary Kerry made trafficking issues a central part of his visit to Malaysia for regional security talks the following August. House and Senate committees also asked the GAO to do a report on the integrity of State Department rankings in the TIP report. Following issuance of the GAO report in December 2016, Sens. Menendez and Marco Rubio introduced legislation to overhaul the TIP report. The bill was reintroduced in February 2017.

Well-Intentioned but Poorly-Designed Report. The Advancing Freedom and Democracy Report, required under Sec. 2121 of the ADVANCE Democracy Act of 2007 (PL 110-53) is supposed to include information on U.S. priorities for the promotion of democracy and the protection of human rights in each country, as well as specific actions taken by U.S. Government officials to achieve those ends. However, because the reporting requirement contains few details and a major loophole (requested by the State Department), this report is of limited utility.

Quarterly Reports Assist Oversight.The Special Inspector General for Afghanistan Reconstruction (SIGAR) is required under Sec. 1229(i) of PL 110-181 to submit quarterly reports to Congress summarizing its audits and investigative activities. (Similar quarterly and semiannual reports were produced by the Special Inspector General for Iraq Reconstruction before the office’s termination in October 2013.) Because SIGAR conducts so many individual audits and investigations, the quarterly reports help oversight committees to track them and detect patterns.

One-Time Reports from Three Sources. 101(c) of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (PL 108-25) required the Institute of Medicine to publish findings comparing the success rates of various HIV/AIDS programs and methods. Sec. 101(c) of the 2008 reauthorization bill (PL 110-293) revises the requirement for this study and Sec. 101(d) adds requirements for an assessment of U.S. global HIV/AIDS programs by the Comptroller General and a report on best practices by the Global AIDS Coordinator.

Adding Information to a Report. 301(g) of the Departmentof State Authorities Act, FY 2017 (PL 114-323) requires that the annual country reports on human rights practices include information about sexual exploitation or abuse committed by UN peacekeepers.

Naming Names. 304(a) of the North Korea Sanctions and Policy Enhancement Act of 2016 (PL 114-122) requires the Secretary of State to identify each person responsible for serious human rights abuses or censorship in North Korea and describe his or her role in the abuses. The first such report was issued on January 11, 2017.

Requiring Research and Data Collection

Collecting and Evaluating Evidence of Gross Human Rights Violations. The “Leahy Law” (actually two laws, 22 U.S.C. 2378d and 10 U.S.C. 362) prohibits assistance to any unit of the security forces of a foreign country if the Secretary of State (or Secretary of Defense) has credible information that such unit has committed a gross violation of human rights. Subsection (d) of the State Department version (22 U.S.C. 2378d) requires the establishment of procedures for receiving, evaluating, preserving, using, and to the maximum extent practicable, publishing such information.

Human Rights Documentation. 1266 of the National Defense Authorization Act for FY 2010 (PL 111-84) authorizes $5 million for the Secretary of State to document, collect, and disseminate information about human rights in Iran.

Assistance for Collecting Forensic Data. 7034(b)(4) of the FY 2016 SFOA provides $4 million in Economic Support Funds to Democracy, Human Rights, and Labor (DRL) to support forensic anthropology assistance related to the exhumation of mass graves and the identification of victims of war crimes and crimes against humanity, primarily in Guatemala, Peru, Colombia, Iraq, and Sri Lanka. It also provides $4 million in counter-narcotics funding for similar purposes.

Required Research on Causes and Consequences of Trafficking. 112A of Trafficking Victims Protection Act of 2000 (PL 106-386) requires the President, acting through the Council of Economic Advisors, the National Research Council of the National Academies, the Secretary of Labor, the Secretary of Health and Human Services, the Attorney General, the Secretary of State, the Administrator of the United States Agency for International Development, and the Director of National Intelligence, to “carry out research, including by providing grants to nongovernmental organizations,” on the causes and consequences of trafficking, the effectiveness of trafficking programs and initiatives, and related topics. Research pursuant to this requirement is available on the U.S. Department of Justice’s page regarding commercial sexual exploitation of children.

Sampling of Contracts to Reduce Trafficking Risk. 232 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (PL 110-457) mandates Inspector General investigations of a sample of contracts under which there is a heightened risk that a contractor may engage, knowingly or unknowingly, in acts related to trafficking in persons. The Department of Defense’s Inspector General published a series of reports from 2010-2012 in accordance with this requirement.

Research on Goods Produced by Forced Labor. 105 of the Trafficking Victims Protection Reauthorization Act of 2005 (PL 109-164) requires the Secretary of Labor to develop and publish a list of imported goods are produced by forced labor or child labor. Publication of this list has raised public awareness about forced labor and child labor and motivated companies to reexamine their supply chains.

Required Recordkeeping on Military Trainees. 548 of the Foreign Assistance Act of 1961 (PL 87-195) requires the Secretary of Defense to develop and maintain a database containing records on each foreign military or defense ministry civilian participant in International Military Education and Training (IMET) activities since 2001. Although the database exists, it is not made public, and even the State Department does not have direct access to it.

Creating Commissions and Panels

Creating Commissions and Panels.The Tom Lantos Human Rights Commission, which replaced the Congressional Human Rights Caucus, was established by Res. 1451 (110th) to promote and advocate internationally recognized human rights norms. It obtains some resources from the House Foreign Affairs Committee, and its authority has been renewed each congress through the adoption of the House Rules (most recently H.Res. 5, 115th). Its activities include regular hearings and briefings to advance human rights protections around the world.

The Commission on Security and Cooperation in Europe (CSCE), also known as the U.S. Helsinki Commission, was established by PL 94-304, which specified its composition, gave it subpoena power, and authorized appropriations for its The CSCE’s mandate is to monitor compliance with the Final Act of the Conference on Security and Cooperation in Europe, with particular regard to human rights and humanitarian cooperation, and to monitor and encourage the East-West economic cooperation and cultural exchange.

The Congressional-Executive Commission on the People’s Republic of China was established under Title III of PL 106-286 to monitor Chinese violations of human rights, compile lists of persons believed to be imprisoned, detained, tortured, or otherwise persecuted by the Government ofChina, and monitor programs to increase respect for human rights and the rule of law in China, among other responsibilities.

The United States Commission on International Religious Freedom was created by Sec. 201 of the International Religious Freedom Act of 1998 (PL 105-292) to review violations of international religious freedom and make policy recommendations to the President, the Secretary of State, and Congress.

The House Democracy Partnership, originally established as the House Democracy Assistance Commission by Res. 135 (109th), is a bipartisancommission of the U.S. House of Representatives that works directly with partner countries around the world to support the development of effective, independent, and responsive legislative institutions. Its authority is renewed each congress through the House Rules (most recently H.Res. 5, 116th).

The HELP Commission Act, Section 637 of Division B of 108-199, created a bipartisan commission to study the performance of development assistance programs and analyze ways to make it more effective. The HELP Commission, officially established in 2004, began meeting in 2006 and issued its final report in 2007, before disbanding.

Requiring Evaluations

Foreign Aid Evaluations.The Foreign Aid Transparency and Accountability Act of 2016 (PL 114-191) requires that the President establish, by December 2017, guidelines and best practices for evaluation of foreign assistance that can be applied with reasonable consistency across agencies.

End-Use Monitoring. 40A of the Arms Export Control Act (PL 90-629; 22 U.S.C. 2785) requires the Department of Defense to perform end-use monitoring of U.S. defense articles and defense services and submit an annual report on actions taken to implement the requirement. Under Sec. 3 of the Act, the President must report to the Congress promptly upon the receipt of information that equipment is used in substantial violation of an agreement. These reports, however, are generally classified.